Last Monday, the Supreme Court granted certiorari in Weyhrauch v. United States, a federal criminal honest services fraud case. We are in Atlanta, Georgia, which is in the Eleventh Circuit. Because this case may impact Eleventh Circuit law, we will follow this case closely and provide any updates.

The question to be decided in Weyhrauch is “Whether, to convict a state official for depriving the public of its right to the defendant’s honest services through the non-disclosure of material information, in violation of the mail-fraud statute (18 U.S.C. Sec. 1341 and 1346), the government must prove that the defendant violated a disclosure duty imposed by state law.”

The defendant in this case is a lawyer and was a member of the Alaska House of Representatives. He is accused of honest services fraud due to conflicts of interest in conducting business with an oil field services company. The government wanted to introduce evidence of his concealment of the conflicts of interest to support the fraud charges, even though the state did not require disclosure.

We have been disappointed in how far federal prosecutors have gone in stretching honest services fraud to cover an expansive range of conduct and we hope that the Supreme Court finally limits this statute. In her post at the White Collar Crime Prof Blog, Professor Pogdor quotes Justice Scalia’s stance:

This case presents another opportunity for Justice Scalia to use his words from the denial of cert in the Sorich case, where he stated that the “28 words” in the statute had “been invoked to impose criminal penalties upon a staggeringly broad swath of behaviour, including misconduct not only by public officials and employees but also by private employees and corporate fiduciaries.”

He stated that “[w]ithout some coherence limiting principle to define what ‘the intangible right to honest services” is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.” Justice Scalia concludes his dissent in Sorich by stating that “it seems to me quite irresponsible to let the current chaos prevail.”

The Petition for Certiorari is available here.
The Brief in Opposition is available here.
The Petitioner’s Reply is available here.

We are currently following another honest services fraud case, Black v. United States, that the Supreme Court agreed to hear back in May. Our posts about it can be found here and here. In that case, the Court will decide whether Section 1346 applies in a purely private setting where the defendant’s conduct did not risk any foreseeable harm to the putative victims.